48© 




Pass ZA^t 



SPEECH 



HON. W: SAULSBURY, OF DEL., 



C0ISrFISCA.TI01S 



"'lini!^''^- ' niKSDAY, JUNE 24, 1862. 




/y^3 



Mr. SAULSBURV said: 

Mr. President: Nearly sixty years ago, when Napoleon was at the zeuith of his power, 
M. (le Chateaubriand penned these words : 

'• When, in the silenoe of abject submiBsiou, w« \w.-av only the chaius of the slaye aad the voice ol tlin iiit'ornier : 

when all tremble before the tyrant, and it iB as dangeroud to incur favor as to merit diai^race, the historiiin 

appears to be charged with the vengeance of nutious. It is in vain that Nero triumphs, 'faeitus has been born 

j in the empire; he {;row» up, uiinotiecJ, near the ashes of Germanicus, and already uncompromising Providence 

has handed over to au ob.'sciire child the glory of the uiaHter of the vrorld." 

Sir, let the wicked imitators of the cruelties of the bloody Nero, and .the oppressions of 
the haughty emperor, ponder well flie utterances of Chateaubriand. History has not only 
a voice, she bears a .scourge. Some future Tacitus shall yet do justice to the genius of 
our free but violated institutions, and transmit, embalmed in merited and everlasting 
infamy, for the execration of future generations, the names and actions of those who, 
charged with a nation's weal, have produced a nation's woe. If, in anticipating to some 
extent to-day the historians task, I shall apeak plainly, and with somewhat of unwonted 
feeling, a deep sen.He of duty to my countrymen will constitute my full justification. 

The times are sadly out of joint. Ruin and destruction lie immediately in our pathway. 
The passions, not the judgment uf men, control their action. The fondest hopes of the 
patriot may in a moment be forever blasted. Whether even now it is possible to escape 
final and irreti-icviible shipwreck is a problem which the wisest are unable to solve. It is 
time, high time, that the representatives of the States and of the people should cry aloud 
aud spare not. It is time that the American people should arouse themselves from the 
lethargy that enervates and the false security that deludes them. Born to an inheritance 
of freedom, they should not passively submit to be slaves Unless they mean to shame a 
uoble ancestry, and bequeath a name of infamy to their posterity, they should at once 
awake to tlie dangers of the present, and provide against the foreshadowed calamitie.s of 
the future. Arbitrary and despotic power, not satisfied with trampling upon every con- 
>?titutional right of the citizen, has profanely dared to invade the temple of justice, ami 
dragged her minister from her altar, lie who invades the sanctuary of justice and inter- 
rupts the due course of its administration proves himself a tyrant capable of any assaults 
upon the liberties of the people. That people are madly blind who, witnessing such acti? 
y of usurpation, fail to demand witli more than baron-like firmness the reaffirmance of the 
Magna Charta of their liberties. 

Under the pretence of suppressing a causeless rebellion, the executive and legislative 
departments of this Government are, in my opinion, daily engaged in the grossest viola- 
tions ot (he fundamental law. If in times of peace the Constitution is the surest protection 
of the citiicji), in time of civil war it is his only hope of safety. When skies are clear, 
when seas ar« calm, and winds are lulled, the mariner treads with unconcern the deck of 
liis ocean home. It is only when waves run high and skies are dark and tempeets howl, 

Mc-Gjll, Wjtherow ii Co., Printers, Waehingtou, 



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that with unfaltering grasp he trusts the helm to guide him safely through the storm. 
Sir, darkness and night have set in around us as a nation. Would that " the night were 
far spent and that day was at hand." But alas! the watchmen can give no signs of 
promise. The hope of the most hopeful begins to fail him, and a nation is solemnly 
inquiring whether it must not cease to be. Sir, I propose to-day before the tribunal of 
my countrymen to make solemn and impartial inquisition of blood. Who are they that 
have murdered constitutional liberty and destroyed our Federal Union ? Day after day, 
since this session has commenced, false teachers have uttered their sayings, and false 
prophets have prophesied to the people. Making wide their political phylacteries, they 
stand in the chief places of the political synagogue that they may be seen and heard of 
men. 

Having deliberately chosen, by the rejection of every honorable and peaceful mode of 
adjustment, the arbitrament of the sword, they have plunged the country into all the 
horrors of civil war, and now that the work of their hands is upon them, they shout aloud 
their devotion to the Union, and evidence their sincerity by attempting the destruction 
of the liberties of the people. They even assume to sit in judgment upon the motives and 
action of those who have independence enough to condemn, and love of country enough to 
resist, the consummation of their schemes for the permanent severance or de?*'-~t=Ti of 
, I'lie 'BvJ<^n•»J. ITnion. With pharisaical Qoolness they stand in the public pla. 

piously thank God that they are not a; '* 

join thcra in their ruthless war upon t 
and palpably unconstitutional aredelib 

their propriety, or refuses his support of them, is, according lo Mi'ti^st^nujiravof judgment, 
<BJ.herV^diffeiifint to theic©^try's interests or traitorous in design '^*inst\he^y It is my 
p"urpo8e!Jlin*parWto-day, to qrit^a^uDM|tion|P.Li<g rafae pret5|p.sioir^^Sjid*toiJgxpose to public 
' view the real autnors aiAl abat'rorsoFiuy country's ruin. They strut the hour," dressed in 
a little brief authority, but the great day. of judgment is at hand, and fortunate for 
many of those whose administration of office and power has been characterized by cruelty 
and injustice, if there shall be found hiding places amid the rocks and mountains in which 
Ihey may shelter from the popular storm. From my place in this Council Chamber of the 
nation I say to my countrymen that it is my deliberate and solemn conviction that either abo- 
litionism or constitutional liberty must forever die. The two cannot exist together. Abo- 
litionism has for the time being dissolved the Union. While it lives and rules, the Union 
will remain dissolved. No free people either will or ought to submit to its sway. It is 
the prolific mother of all our national woes Until it entered our political Eden, we did 
eat of the' pleasant fruits of the tree of liberty and were content. It came, and with it 
death. 

A little more than seventy years ago, the people of thirteen separate and independent 
States entered into an agreement, made a compact, formed a union, the terms of which 
were plainly aud distinctly evidenced in writing, which writing they denominated a cou- 
( stitution of government. By their valor in the field they had forced an acknowledgment 
not of their collective, but of their separate independence. They had been separate not 
united colonies of Great Britain, and although, when the latter attempted to coerce the 
colony of Massachusetts into obedience to the exercise of arbitrary power, all the others 
united with her in her defence, and afterwards continued united for purposes of common 
defence against a common oppressor until oppression had been overcome and independence 
achieved, yet none of them at any tinie or for any purpose yielded up its separate and 
independent position. By the first article of the treaty of peace in 1783, Great Britain, 
distinctly recognizing «ach of her original thirteen colonies by name, as distinctly acknowl- 
edges each to be a free, sovereign, and independent State, and treats with them collec- 
tively as such. As such separate and independent States allegiance was due to each of 
them from their respective citizens. Each possessed all the attributes of independent 
sovereignty, and had full power and right to make treaties and form alliances with any 
or all other nations of the earth. In a word, each had the ri|:ht to do all acts which a 
free and independent nation might of right do. For purposes of common convenience and 
interest they entered as independent States, each with the other, into Articles of Con 
federation.' 

In 1787, for the purpose of forming a more perfect union between them, these separate, 
independent, and sovereign States appointed delegates to a common convention, to con- 
sider and agree upon terms of union for purposes common to them all, subject, however, 
to their separate-ratification and approval. The approval of a majority of all the people 
of these States could not make the agreement of the delegates a constitution for all or any 
of them. It required the separate approval of each separate State to make that agreement 
its constitution. When nine States had thus separately ratified this^agreement, it became 
their Constitution, but not the Constitution of those States which had not given their as- 
sent. The smallest of the States was the last to yiel^ that aseent, and until that assent 

IN EXCHANGE . 
^ * JUN 5 1917 



was given, she was to the others as a foreign State. In the formation of this agreement, 
contract, compact, or Constitution of Union, the representatives of the several States en- 
countered many and some almost insuperable difficulties. These were occasioned by sup- 
posed differences of State and sectional interests. Harmony and union could only be 
secured by concession and compromise. Representation and taxation were subjects of dif- 
fereuce. The domestic relation of master and slave was another. These, however, with 
others, were happily adjusted. No one was mad enough then to propose emancipation of 
slaves as a condition of Union. The representatives from those States now most clamorous 
for emancipation were the most anxious for the continuance of the slave trade. To satisfy 
them, the African slave trade was legalized for a period of twenty years. To render the 
master secure in the possession of his slave, it was provided that — 

" No person held to seryice or labor in one State, under the laws thereof, escaping intxj another, shall, in 
ronsequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered 
up on claim of the party to whom such servica or labor may be due.". 

To compensate for this pledge of security to slave property, it was provided that — 

" Kepresentatives and direct taxes shall be apportioned among the several States which may be included 
within this Union, according to their respective numbers, which shall be determined by adding to the whole 
number of free persons, including those bound to serTice for a term of years, and excluding Indians not taxed, 
tlireo-fifths of all other persons." • 

It was further provided in said Constitution, that " new States may be admitted by the 
Congress into this Union," and as the States forming the Constitution were in all respects 
equal, the just, fair, and only inference to be drawn from this provision is that such " new 
States" were to be admitted on terms of perfect equality with the original States. The 
purposes inducing the formation of the Constitution were, as therein 8tated,>"to form a 
more perfect union, establish justice, insure doln^estic tranquillity, provide for the common 
defence, promote the general welfare, and secure the blessings of liberty to ourselves and 
our posterity." the Government thus formed was clothed with ample powers, but it 
coUld exercise no powers not delegated in the instrument creating it, for it was expressly 
provided that " the powers not delegated to the United States by the Constitution, nor 
prohibited by it to the States, are reserved to the States respectively, or to the people." 
The application of these principles to the bill under consideration will hereafter appear. 
A Federal, common Government, with delegated and strictly-defined powers, having thus 
been established, the fondest hope of the patriot was at last realized. He looked forward 
in exultant hope and saw in the not distant future a mighty people, with a domain extend- 
ing from lakes to gulf and from ocean to ocean, attracting by the free spirit of their insti- 
tutions the wanderer from every clime, and commanding by their justice and power the 
admiration and respect of the whole civilized world. 

For more than thirty years this people were contented, happy, pr'osperous, free. They 
had not listened to the teachings of a false philanthropy, nor yielded to the suggestions 
of those governed solely by motives of personal ambition. The fathers lived, and while 
ihey lived plighted faith was observed and national honor was maintained. To carry into 
effect that compromise of the Constitution without which even Justice Story admits the 
Constitution could not have been formed, they passed the first fugitive slave act in 1793, 
which rec.eived the approval of the Father of his Country, as President of the United States. 
New States were from time to time admitted into the Union, from the time of its formation 
until 18li0, with or without slavery, according to the free choice of their citizens. Ver- 
mont, Kentucky, Tennessee, Ohio, Louisiana, Indiana, Mississippi, Illinois, ^labama, and 
Maine, were so admitted. In 1819, the people of Missouri applied for admission into the 
Union. Their constitution recognized the relation of master and slave. It was then that 
political abolitionism attempted to deprive the people of a State of admission into the 
Union unless they would surrender the dearest constitutional right of American freemen — 
the right to form and regulate their domestic institutions in their own way — and consent 
to have those institutions formed and regulated by others. The controversy convulsed the 
nation, and threatened with destruction the best and freest Government on earth. To 
escape that destruction, an ignominious and unconstitutional condition was extorted from 
the patriots of that day, which has had, in its effects and consequences, much to do in 
involving us in the unhnppy condition in which we are now placed. This was the first 
instalment of abolitionism towards our country's ruin. The storm passed by, and aboli- 
tionism slept, but was not dead. 

From 1838 to 1844 it again disturbed the peace of the country by its repeated appeals 
to Congress to abolish slavery in the District of Columbia and in the national dock-yards 
and arsenals. About the same time it clamored against the admission of Texas into 
the Union until that people would consent to mold their domestic institutions to suit its 
vitiated taste. We acquired our possessions from Mexico, and true to its instincts for 
political mischief, it convulsed the land and threatened the Government with destruction 
unless slavery should be by act of Congress excluded therefrom. The fugitive slave law 



was amended so as to enable the master to reclaim the possession of the fugitive from 
service and labor, as was his unquestionable right under the Federal Constitution. Abo- 
litionism resisted, and by force, the execution of that law, and in many States attempted 
to nullify, and practically did nullify it, by opposing unconstitutional State legislation 
denominated personal liberty bills. In every instance from the foundation of the Govern- 
ment it had been aggressive. Political parties, yielding to its influence to gain a tem- 
porary advantage, were first corrupted and then destroyed by it. 

In 1856 a new party arose, many of whose members were honestly opposed to political 
abolitionism, but her votaries thronged its conventions, made its platforms, and nom- 
inated its candidates for office. Passing by the distinguished men who gave to it their 
adhesion, they nominated for the first office in the nation a political adventurer, and declared 
a general war upon what they were pleased to term "those twin relics of burbarism, 
polygamy, and slavery." They emerged from the conflict defeated, but surprised at their 
almost triumphal success. Gaining control of almost if not all the State governments in 
the North and Northwest, they directed their legislation and inflamed the minds of their 
people against the institution of domestic slavery. Their representatives thronged the 
Halls of Federal legislation and clamored for emancipation. Abolition petitions flooded 
the country and loaded your tables. An abolition press debauched the minds 6f the peo- 
ple, and abolition orators inflamed their pabsions by reciting to them the horrors of slavery 
among a distant people. This fanaticism and wickedness culminated in the attempt by 
abolition emissaries to invade a slaveholding State, for the purpose of stirring up a servile 
insurrection, and in murdering, with the assistance of their free negro associates, peaceful 
citizens in the stillness of a Sabbath's night. Abolitionism howled in rage at the failure 
of bis hellish scheme, and declared his execution a judicial murder. Abolitionists fol- 
lowed him to 'his grave, and a leading saint proclaimed that the gallows upon which he 
expiated his crimes was b^ hie death rendered as illustrious as the cross upon which 
the Saviour died. Thus again, continuously and persistently, has abolitionism been 
aggressive. 

In 1860 the Republican party, in a national convention, composed of men some of whom 
were not and some of whom were abolitionists, adopted a platform aggressive in its charac- 
ter, in which they, among other things, declared their intention to prohibit the admission 
of any more slave States into the Union, and also an intention to exclude slavery from the 
common Territories. Upon this platform they nominated for President of the United 
States, a man who had previously proclaimed in substance, in allusion to the States com- 
posing the Federal Union, •' that a house divided against itself cannot stand, that either all 
the States would become free or all slave, and that the agitation of slavery would continue 
until the public mind could rest in the assurance that it was in the course of ultimate ex- 
tinction." He was elected. Then it was that the clouds gathered darkness, and the bowl- 
ings of the coming storm were distinctly heard in the distance. Wise men, good men, saw 
those clouds and heard the mutterings of that storm. The opposing elements of political 
discord were brought face in the Council Chamber of the nation. The representatives of 
tha South demanded guarantees that their constitutional rights should be respected and 
observed in the future. The representatives of the North refused to give them. A ven- 
erable Senator [Mr. Crittenden] who had been almost a cotemporary with the fathers, 
yet lingered beyond his years among their children. He offered in his place in the Senate 
a compromise honorable to-all, derogatory to none, guaranteeing rights which had solemnly 
been decided by the highest and final legal tribunal to exist under the Constitution. The 
representative^of the South were willing to accept them. The people of the North, by 
their petitions, requested you to accept them. You refused, and your refusal produced war, 
deadly war, civil war, remorseless war, war the end of which the wisest cannot foresee, 
but which threatens to end only in the overthrow of the nation and the destruction of the 
liberties of the people. 

When 1 say that your refusal to adopt the Crittenden compromise measures produced 
war, I do not mean to say that this Government struck the first blow. I mean to say that 
you knew, were assured, had reason to believe, and, in my opinion, did believe, the war 
would result from your refusal ; that you had it in your power by honorable compromise 
to prevent war, and that you deliberately chose war in preference to averting it by com- 
promise. A number of the southern States assumed to withdraw from the Union. They 
confederated together and established an independent government. They organized a mili- 
tary force, seized upon the forts and arsenals within their limits, and failing to receive a 
recognition of their independence by the Executive, in apprehension that a feeble garrison 
at Fort Sumter might be reinforced, they demanded its surrender. Being refused, they 
fired the first gun, and thus precipitated war. Would that the hand that applied that torch 
had fell paralyzed and withered to the ground. 

Mr. President, this inauguration of civil war might have been averted by the adoption 
of the Crittenden compromise. War followed its rejection. Let the responsibility rest 



where it properly belongs. History will record her verdict. Posterity will judge right- 
eously. The attack upon Fort Sumter inflamed the passions of the nation. The President 
called for seventy-five thousand volunteers, 

•' They came as the winds come when forests are Tended, 
They came as the waves come when navies are stranded." 

Congress met. He who would have proposed to avert the further calamities of war, or 
to have preserved the nation by any other means than war, might expect to be regarded as 
little better than a traitor Men and money were profusely voted. Armies weie marohe I 
into the field, and " on to Richmond !" was the cry. On towards Richmond they went, and 
the bloody field of Manassas evidenced their defeat. On the very day succeeding that battle, 
Congress unanimously passed the following resolution : 

"That this war is not waged on their part in any spirit of oppression, nor for any purpose of conquest or sub- 
jugation, nor purpose of overtlyowiug or interfering with the rights or established institutions of those States, 
but to defend and maintain the supremacy of the Constitution, and to preserve the Union with all the dignity, 
©quality, and rights of the several States unimpaired ; and that as scjon as these objects are accomplished tln» 
war ought to cease." 

The nation took heart again. Seven hundred thousand volunteers went to the field. 
Every border slave State that had not seceded resolved to stand by the old flag and by the 
Federal Union. They sent their sons to swell your armies, and their bones whiten every 
battle-ground. Congress met in December. How have you kept your blighted faith ? 
" Let facts be submitted to a candid world." You have abolished slavery in the District 
of Columbia without the consent of their owners and against their wishes. You have thus 
created a "paradise for free negroes," to which the slaves of loyal masters in Maryland 
escape by hundreds. When the owner applies to your court for redress and they afford it, 
as they are bound to and as far as they can, you turn your military power against the mar- 
shal and prevent the due execution of legal process. You have made it an oflfence punishable 
by dismissal from the service for any officer of the Army to return a fugitive slave to his loyal 
owner. You have refused to make it an oflfence punishable in like manner for such officer 
to entice or decoy a slave from his loyal owner. You have through your armies decoyed 
from the service of their owners, loyal and disloyal, or afforded shelter and protection to 
them, thousands of slaves within the States. You are now feeding and clothing thousands 
of this class of people out of the public Treasury without warrant of law, and are levying 
taxes upon the white people of the country to enable you to continue the expenditure. 
You are now keeping ai the public expense in this city a row of houses in which you sup- 
port, without authority of law, hundreds of this class of people in idleness. You are pay- 
ing thousands of negroes as teamsters in your Army at the rate of thirty dollars per month, 
while your white soldiers are fighting your battles for thirteen dollars per month. You 
are arming the slaves of the South and enlisting them in your Navy for the murder of their 
masters. You have, as far as this body could do so, repealed the law prohibiting free 
negroes from carrying the mail You have legalized the testimony of a negro against a 
white man. and that of the slave which you have freed as against his master. You have, 
upon the recommendation of the President, attempted to build up an abolition party in the 
border slave States by the offer of pecuniary aid which you have neither the ability, consti- 
tutional authority, or intention to give. As if for the purpose of irritating anl wounding 
the sensibilities of those whom you have already grievously wronged, you have chosen thin 
as the most opportune time to establish diplomatic relations with the free uegro republics 
of Hayti and Liberia. Instead of returning fugitive slaves to their owners, as by law you are 
bound to do, you have appointed a superintendent over them to prevent their return, and to 
provide for their comfort out of the taxes levied upon the industry of the country. Instead 
of avoiding unnecessary legislation in reference to the cause of sectional difl^erence, you 
have prohibited the existence of slavery, not only in existing territory but in any which 
may hereafter be acquired. Lest the sincerity of your pledge should not otherwise be 
sufiioiently evidenced, the Council Chamber of the nation fs converted into a house of wailing 
over the wroflgs inflicted upon the poor unoffending slave. You have by your bills pro- 
posed the emancipation of almost the entire slave population in the States, and the bill now 
before the Senate is to be amended, if possible, so as to accomplish that object. But I turu 
from the recital of these violations of plighted faith to a consideration of the principles in 
volved in the measure now before the Senate. 

In order to understand the character of the bill under consideration, the power of 
Congress to pass it, and the propriety of its passage, we must consider the nature of the 
conflict in which we are involved. Loose ideas prevail upon this subject. Some have 
denominated the resistance of the confederate States sedition. The President considers 
it an insun-ection . but it ie most generally termed a rebellion. Sedition is defined to be 
'*B tumult, an insurrection, a popular commotion, an uproar " 



"That sunshine brew'd a shower for him, 
That waah'd his father's fortunes forth of France, 
And heap'd sedition on his crown at home." 
"In soothing them, we nourish 'gainst our senate 
The cockle of rebellion, insolence, sedition." 

The term sedition, therefore, cannot in this instance be properly applied. An insurrec- 
tion is a seditious rising, a rebellious commotion. Like sedition, it is the act of unorganized 
individuals. A portion of the people, without the forms of law, may make a sedition or 
insurrection against the authority of the State ; but States and organized political commu- 
nities cannot with propriety be said to be seditious or insurrectionary. 

" Between the acting of a dreadful thing 

And the first motioti, all the interim is 

Like a phantasma, or a hidous dream ; 

The genius, and the moral instruments. 

Are then in council ; and the state of man, 

Like to a little kingdom, suffers then 

The nature of an irwwrreciion." * 

Insurrections of base people ate commonly more furious in their beginnings. (Bacon's 
Henry VII.) Neither is rebellion, in the popular sense, a proper term to describe the 
resistance of those States to Federal authority. Rebellion is resistance to lawful authority, 
but it is always the voluntary act of individuals, and never is applied to the organized action 
of political communities. We read and have heard of the whisky insurrection in Pennsyl- 
vania, and of Shay's rebellion in Massachusetts, but who ever heard or read of the Amer- 
ican insurrection or the French rebellion. Sir, we are in the midst of a great political 
revolution or change of government, to which sovereign States, confederated together, not 
individuals, are parties on one side, and the Government of the United States is party on 
the other. This fact is necessary to be observed and remembered that we may have a clear 
perception of the character of mugh of our legislation, consummated and proposed. I 
shall assume what is conceded, conceded by the Senator from Vermont, [Mr. Collamer,] 
and also by the Senator from Pennsylvania, [Mr. Cowan,] that the government of the 
confederate States is a government de facto. Asstiming this, which I think cannot be suc- 
cessfully denied, I propose to consider the question whether, under existing circumstances, 
all those who yield obedience to the government of the confederate States, by accepting 
and exercisipg office under it, or even by bearing arms in its support, can be rightfully 
regarded and treated as traitors by us. 

This is a subject that should be approached with an honest and candid purpose, and its 
consideration freed as far as possible from all the passions and prejudices of the maddened 
hour. We can gain nothing before the great tribunal of the world, thatt of history, or, 
eventually, that of our own consciences, by self deception, by the adoption of false prem- 
ises, or the application of false logic. I am aware, Mr. President, that the opinions I am 
about to express do not accord with the notions of many blatant patriots of the present 
times. There is not an Army contractor in the land who will not condemn them. There 
is not a public plunderer between the two oceans wliose patriotism would not be shocked 
at them. There is not an abolition Union-slider, from Maine to California, that would not 
consider them heretical. But, sir, I speak to men of sense, and not to fools. I want the 
ear of honest Union-loving men, whose action in the past, as well as at the present, evidence 
the sincerity of their attachment to the Union. I have no message for those who are for 
the U^ion without slavery, but opposed to a Union in which slavery exists. Such miserable 
traitors deceive nobody by their cry of Union. 

I believe that when a revolution is so far completed that a government de facto has be- 
come established, when the former Government is so far ousted that after having had a 
full opportunity it has shown itself unable to alFord protection to its adherents in the rev- 
olutionary government, the duty of allegiance so far ceases that it would be unjust, and 
therefore illegal, to punish obedience to the commands of the government de facto as treason 
towards the government c?«y^<re. It is a well recognized maxim that allegiance and pro- 
tection are reciprocal. If the l&tter cannot be afforded, the former cannot be required. It 
is not, however, every temporary interruption of the, one that will even proportionately 
dissolve the other. An insurrection or even a mob may for the time being overpower the 
civil authorities of a country without in any degree affecting the right of the lawful gov- 
ernment to the allegiance of its citizens. But suppose that, after full time has been given 
to the protecting government to discharge its duty to the citizen, it has been found wholly 
unable to do so, does the reciprocal duty of allegiance remain in full force and forever ? 
When a revolution is fully effected ; when the old government is entirely ousted, and the 
new one firmly established, can those who yield support to the latter incur thereby the 
pains and penalties of treason against the former ? Were those who recognized the gov- 
ernment of Cromwell, and who actually took up arms in its defence, even as against the 
Stuarts themselves, justly liable to the penalty of having their bodies drawn and quartered, 



their property confiscated, and their widows and orphans beggared, when Charles II after- 
wards came to the throne ? Even were such the stern rule of English law, I might ask, 
is it so here ? Is it in consonance with the great principles of national justice and reason 
upon which our maxims of government are founded ? 

Monarchists sedulously inculcate the rule that the safety of the Government is paramount 
to every other consideration. According to them, it is better that the rights and interests, 
the life, liberty, and property of thousands of subjects should be sacrificed, than that the 
stability of the throne should be in the least degree aflFected. Passive obedience is the 
foundation of their whole system of government. No force of circumstances can justify a 
transfer of the allegiance of the people from him who rules by divine right. But with us — 
salus populi suprema lex est. Governments, according to our theory, derive all their just 
powers from the consent of the governed. There is no divine right in the ruling power. 
The Government is the servant of the people, the mere instrument to promote their wel- 
fare. In the Declaration of Independence, life, liberty, and the pursuit of happiness, are 
declared to be inalienable rights; and that "to secure these rights, governments are in- 
stituted among men, deriving their just powers from the consent of the governed ; that 
whenever any form of government becomes destructive of these ends, it is the right of the 
people to alter or to abolish it, and to institute a new government, laying its foundations 
on such principles and organizing its powers in such form as to them shall seem most 
likely to effect their safety and happiness." Nor have we been slow in aflSrming our im-' 
plicit faith in this declaration of the fathers. AVitness our prompt recognition of the inde- 
pendence of the South American and other republics. Kossuth, the unsuccessful revolu- 
tionist, Avas the nation's guest. Founded on principles and aiming at purposes so entirely 
different, our maxims of government must be expected t6 be shaped accordingly, and 
therefore, in many respects, to be wholly at variance with those of other nations. 

As an example of this, I refer to the doctrine of the right of expatriation. It is an 
established rule, in most other countries, that the allegiance of the subject is perpetual, 
and can never be thrown off by his own act. He may have removed his domicil ; he maj-^ 
have abjured his allegiance ; he may have renounced all right to protection from hi.s 
original sovereign ; he may have united his fortunes and those of his posterity with 
another Government, and sworn allegiance thereto, but still the obligation imposed hy 
birth remains in force. If taken in arms against his native country, though in support 
of that of his adoption, he is regarded as a traitor, and is liable to punishment as such. 
Nay, he may be seized by force, and compelled to serve his native sovereign in his fleet 
and in his armies, and may be treated in all respects as though his original allegiance had 
never been interrupted, changed or diminished. At the cannon's mouth we have denjed 
the exercise of any such right on the part of another nation over any of our adopted citi- 
zens. We are estopped from claiming for ourselves that which we deny to others. The 
law of nations, as understood in European monarchies, has therefore been essentially mod- 
ified by us in this important particular. 

The rule I am now considering is closely akin to that just statfed, and rests on a similar 
basis. In fact, it ipay be said to have a more firm foundation. He who leaves his country 
and abjures his allegiance to his sovereign acts a voluntary part. He who is forced away 
from the protection of his native country by the current of events yields to necessity. 
Without any act of his own he finds himself subject to a power which he has no means of 
resisting, and that power, to all appearances, firmly established as one of the nations of 
the earth. To persist in allegiance to the Federal Government is to court inevitable de- 
struction. He yields to the power he cannot resist. He acknowledges the ,de facto gov- 
ernment. He swears allegiance to it. He accepts office under it, as did Hale and Milton 
under Cromwell, and as did thousands of our ancestors in the days of our own'Revolution. 
He takes up arms in its defence. Is he a traitor, is he guilty of treason under any rule of 
law founded on reason and supported by justice? Does a just Government impose such 
conditions upon the loyalty of its citizens ? If it is no sufiicient cause of war for a foreign 
Power to acknowledge the independence of a de facto government founded on revolution, 
can a single individual, who has been driven by necessity to do the same thing, be pun- 
ished as a felon therefor ? Could they who accepted ofiice under the Republic, the Consulate, 
or the Empire of France, they who fought the battles, or who in any other way recognized 
and endeavored to sustain either of those Governments, be rightfully punisbed as tra^ors 
by the restored Bourbons ? 

I do not ask now, although I may show hereafter, what is the European law on this 
subject ; but what says the American mind, how throbs the American heart in relation to 
this matter? I say nothing of the application of these principles to the conduct of the 
instigators of, revolutions so far as relates to overt acts preceding the establishment of a 
government de facto. If such acts amount to treason, the Constitution defines treason, and 
the laws provide an ample punishment. I speak only of acts done after the establishment 
of a government de facto, in obedience to and in compliance with its demands. English- 



8 

men persisted in calling Washington, Franklin, Adams, and Jefferson rebels and traitorti. 
Had fortune placed the colonies again uud«r the dominion of the British king, these leaders 
might have been called upon to have paid the forfeitui-e of theii- lives, but there would have 
stood the solemn assertion before cited from the Declaration of Independence as -evi- 
dencing the judgment of their cotemporaries that their execution was judicial murder. 
But whether such severity would have been in acnordance with the dictates of humanity, 
of good policy, or even the principles of English law, it is not necessary now to consider. 

I d not deny that the Draconian law of treason, with which most Governments have 
thought it expedient to hedge themselves around, would justify such bloody severity ; but 
I do deny that persons who merely heid civil oflEices, or the rank and file, or even the ofiScers 
of the army, who, after the colonies had established a de faclo government, and showed a 
probable capability of sustaining it, had given it their support, were guilty even of tech- 
nical treason within the meaning of that term, according to either English or American 
law. So thought the English Government itself, for no ttial for treason was had in its 
courts, and no estates were confiscated by acts of its Parliament. Punishment is some.- 
times meted out from considerations of mere policy, irrespective of any rule of right or 
wrong ; but such cases are few and of doubtful authority. In general, no act which is 
not wrong in itself, and which does not involve moral turpitude, should ever be punished 
with severity. At all events, he who is only insisting on what he has reason to believe is 
his just right, or does that which he honestly thinks is his duty, should never be punished 
as a felon. Governments founded on mere force may disregard this rule, but not one 
which is founded in reason. 

Now, we have solemnly promulgated to the world the great truth that the people have a 
right to revolutionize their Government whenever they find it not calculated to promote 
the purpose for which it was orga^nized. They may overturn and overturn and overturn, 
according to the American idea, until they obtain one such as they desire. . This is not 
only the doctrine of the political fathers. It has been declared in more precise and unmis- 
takable terms by the present head of the party which now controls the destinies of this 
nation. In a published speech, delivered by him when a member of the House of Piep- 
resentatives in 1848, he says : 

•' Any people anywhere being inclined, and having the powe:-, have the. right to rise up and shake oft" the 
existing Government, and Irom a new one that suits tliem better. This is a moat valuable, a most sacred right, 
a right which we hope and believe is to liberate the world. Nor is the right confined to cases in which the 
whole people of an existing Government may choose to exorcise it. _ Any portion of such people that can man 
Btvolutionize and make their own of so much of the territory as they inhabit. More than this, a majority of 
»ny portion of such people may revolutionize, putting down a minority intermingled with or ne,ar about them 
who may oppose these movements. Such minority was precisely the case with the Tories of our Revolution. 
Jt'is a quality of revolutions not to go by old lines or eld laws, hut to break up both, and make new ones." — 
Appendix to Congressimtal Globe fm- 1847-48. p. 94. 

i quote the expression of opinion, because it is, or least was, the opinion of the present 
t!hief Magistrate, and not because I approve it. I dissent from it. It more than justifies 
the secession of, or revolution in, the confederate States, a justification which 1 never have 
and which I do not now accord to them. It will be Observed, however, that the rule here 
laid down exculpates not only the abettors but the instigators ot successful revolutions. 
Can a change of external circumstances convert that into a crime which has once been 
but the exercise of an admitted right ? "When a revolution has once been completely 
successful, can a subsequent counter-resolution change an act of patriotism into one of 
felony ? It is reasonable, therefore, to contend that the principles which have been estab- 
lished in this cottntry lead necessarily to the conclusion that the law of treason, as at one 
time understood in England and other countries where it had been the oflspring of king-craft, 
has never been adopted in all its severity here. It is only necessary to determine how great 
is the modification we have made in this respect. Some change has been effected. How 
great is that change/ If it be said that the right of revolution, which we allow only con- 
templates a revolution that is finally successful and permanent, and that where such 
eventual success is not attained the severity of the old rule is still in full force, I inquire 
wha.t, then, is the change Tvhich have been made ? Wherein does the rule, as thus ex- 
pounded, differ from that which has been recognized since the origin of civil Governments, 
even by the most absolute tyrants '.' The practical justification of a successful revolution 
haii never been denied. It would have been admitted by the Cassars, the Tudors, or the 
Bourbons. If the right of revolution, as understood by us, is merely-an exemption from 
punishment of those whom we could not punish if we would ; if we are to treat all those 
within our reach just as they would have been treated by the despots of Europe, wherein 
consists the propriety of all the flourish of trumpets as to the right of revolution ? How 
can this be " a most valuable and sacred right — a right which we hope and believe is to 
liberate the world?" Have we made any new discovery? Have we recognized any new 
doctrine, or are we not, rather, in this respect, practically following along in the beateu 
track that has been undeviatingly trodden by the most arbitrary GovernmentB ever since 



the flood ? The bloodiest tyrant never contented for any severer rule than that the unsuc- 
cessful rebels should be gibbeted. Success has always atoned for crimes of this nature. 

But such is not a just interpretation of the great American doctrine on which our very 
existence as a nation is founded. The right of revolution is not a mere name — a sound 
without signification. But there is a substantial difference between us and the monarchies 
of the Old World in regard to the light in which efforts at revolution are to be regarded. 
1 claim no exemption from punishment for the wanton disturbers of the public peace. Viola- 
tors of law have even less excuse here than in countries where the people have less to do 
with their enactment. Superadded to their general duties as citizens are the obligations of 
good faith to support what they themselves have aided to establish. A riot, a mob, or 
even an insurrection, will justly subject all those connected therewith to the punishment 
provided by law. A revolution at its commencement may be but an insurrection. If it 
has no sufiicient foundation in the public mind — if there is no great popular grievance 
sufficient to give it the necessary support it will fail. They who engage in it act at their 
own peril. They must have sufficient grounds to believe that the causes of public dissatis- 
faction are sufficient, to secure them success before they are justified in aiding such a 
measure. If they misjudge they are liable to punishment. This is the only effectual way 
to prevent causeless attempts at revolution occasioning frequent bloodshed and general 
feeling of personal insecurity both of life and property. • . 

The first movers in a revolution may, therefore, be compelled to look to final success as 
their sole justification. But is the case of all those who yield allegiance to the revolu- 
tionary government when it has been, in point of fact, established, and, before it is 
acknowledged by the former sovereign ? Take an individual citizen of a country thus 
situated, and suppose him to be actuated by the most conscientious desire to perform his 
public duty. If the revolution is to be a success, ought he not to support it ; if a failure, 
ought he not to oppose it ? Would not such a course tend to lessen the evils of a revolu- 
tionary struggle ? But he has no means of determining the future and must be governed 
by probabilities. Shall a mere mistake of judgment, while his intentions are good, con- 
stitute a crime ? If the doctrine of divine, indefeasible right were established, he would be 
free from all moral difficulty on this subject. His duty would be plain, though it might 
be dangerous to discharge it fully. But where the right of revolution is the established 
doctrine,' it may become a matter of duty to support the revolutionary government, not 
only when it has been fully established, but when it has shown a sufficient probability that 
it will ultimately be established. The Tories of the Revolution may not have been morally 
culpable for their adherence to the king at the commencement of that struggle, but those 
who continued their allegiance to him up to its very close have always been held so ; and, 
under the American doctrine, they have been justly so held. No rule of law can be just 
and sound which punishes a person as a felon for doing what he earnestly and conscienti- 
ously believes to be right. The doctrine of the right of revolution leads, therefore, trn- 
erringly to this result — that where a revolution is begun under circumstances which show 
clear probability of success, it may become the duty of every citizen to yield allegiance to 
the new government ; and where there ife only a reasonable probability of success, they who 
support that government commit thereby no felony, and cannot justly be subjected to the 
punishment of death, imprisonment, or the confiscation of their property. 

Does the present condition of the confederate States bring their people within the saving 
influence of the latter of these rules? They have established a government de facto, which 
they have sustained for more than a year in spite of the most gigantic efforts to overthrow 
it. That governments exerts its sway over a region truly imperial in territorial extent, and 
over a people who have manifested a unanimity and earnestness of feeling rarely witnessed 
in any other country on earth. They have kept on foot an army of half a million of brave 
men, and have manifested an energy and a power that, according to all the rules of common 
calculation, would have insured success. In spite of all these efforts, however, they may 
eventually be crushed ; but this can only be by the weight of exertions on our part little 
short of superhuman. It must be recollected, too, that the power we are now putting forth is 
not known or appreciated by the masses of the people in the revolted States. Judging by 
what they have the means of learning, they may fairly conclude that the revolution is an 
accomplished fact, and that no public or private duty stands in opposition to their recog- 
nition and support of the de facto government. And even should this not amount to a jus- 
tification, when it is remembered that the force of sympathy and that pressing considerations 
of personal safety are all acting as a bias upon their judgments, will it be worthy of the 
magnanimity of a great and powerful country to visit with death, imprisonment, or con- 
fiscation those whose judgments and whose sense of duty have been swayed from their equi- 
librium by considerations that always so naturally and powerfully operate upon the minds 
of erring men ? 

But ihere is another consideration which deserves to be well weightd. The people of 
the confederate States had sworn to support the constitutions of their respectivs States, 



. 10 

as well as that of the United States. They owed, therefore, a double allegiance, which, 
from the force of circumstances, becoming antagonized, drew them in opposite directions. 
Which of these obligations was paramount it is not for me to decide. The people of the , 
confederate States had always, with great unanimity, held that the State sovereignty was 
paramount. It is original, the other derivative. The latter is specific, the former gen- 
eral. The one authority exercises only those powers which are enumerated, the other all 
those which are not prohibited. Admitting that their notions upon this subject are 
erroneous, it is an error which does not involve criminality. Men as honest and as intel- 
ligent as any of us are earnestly and entirely convinced of the soundness of their doctrine 
in regard to the paramount sovereignty of the States. It is certainly a question upon 
which men may honestly differ, and in regard to which toleration and charity are unques- 
tionable duties on the part of those who believe themselves wiser than those who differ 
from them on this subject. Shall we then consign men to the dungeon or the grave, and 
their families to penury, merely for differing with us in opinion on this subject and hon- 
estly acting upon their conviction of duty ? Let us not congratulate ourselves upon the 
disuse of the inquisition, or claim superiority over those who a few centuries since con- 
signed men and women to the dungeon and the flames for what were deemed errors in 
respect to religion, while we practice the same rigorous and bloody intolerance towards 
the lessJmporiant errors of political opinion. 

I k>now it may be said, in reply, that the errors of which I speak are not those of mere 
;ab3tract theory, but are productive of immediate practical evils. I admit it ; and since 
the arbitrament of the sword has unwisely been resorted to as the means of settling our 
difficulties I do not object to the proper amount of physical coercion. The same would 
be the case if men under the garb of religion should introduce practices destructive of the 
peace and order of society. But in such cases the remedy should only be commensurate 
with the disease. We might justly punish persons for the direct consequences of any of 
their acts in violation of law, how much soever they might profess to have been actuated 
by conscientious motives, or to have acted in accordance with their religious theories, but 
we should never send them to the gallows or the penitentiary ; we should never confiscate 
their property on account of their errors of opinion and judgment, or of acts done in obe- 
dience to their dictates, because they had adopted notions and acted upon them which in 
our opinion were calculated to produce and did produce public mischiefs. So, in the 
present case, let men be punished for the direct and immediate consequences of their con- 
duct. If their mistaken theories cause them to rise in arms, let them be put down by the 
strong arm of power, if it be necessary to invoke war for that purpose ; but when the 
desired result is attained, when all resistance to the law is overcome, let reason and 
humanity again resume their sway. 

It certainly cannot be expedient, upon the principles I have been considering, that he 
who, from a mistaken political theory, had consented to exercise the functions of civil 
ofBce and to aid a government that could command his obedience and punish him for dis- 
obedience, should be made to undergo the punishment of a felon ; nor that he who, hav- 
ing just grounds of doubt as to his public duty in any other respect, has followed the dic- 
tates ■of his own judgment and adopted a course which subsequent events have shown to 
be erroneous, should be visited with all the dire consequences of intentional wickedness. 
But why argue the question as a matter of law, or assign reasons founded in justice and 
humanity against the exercise of the power. The whole subject is res adjudicata. Even 
in England the statute of treason applies to a king de facto, and not de jure. Says Black- 
stone, vol. 4, p. 221 : 

'•A usurper who has got possession of the throne is a king within the meaning of the statute, as there is a 
temporary allegiauee due to him for his administration of the government and temporary protection of the 
public ; and therefore treasons committed against Henry VX were punished under Edward IV, though all the 
line of Lancaster had been previously declared usurpers by act of Parliament. When, therefore, a usurper is 
in possession, the subject is excused and justified in obeying and giving his assista^ice. Otherwise, under a 
usurpation, no man would be siife if the lawful prince had a right to hang him for obedience to the powers in 
being, as the usurper would certainly do for disobedience." 

If such be the rule in a consolidated monarchy, where there is no double allegiance to 
be by force of circumstances antagonized, how much more powerful are the reasons for its 
recognition and observance in a Government and country like ours, where allegiance is 
due to State as well as Fedei-al authority ? Observe the reason assigned by Blackstone 
for the principle which he asserts to be law: 

"When, therefore, a usurper is in possession, the subject is excused and justified in obeying and giving his 
assistance; otherwise, under a usurpation no one Would be safe, if the lawful prince had a right to liang him 
for obedience to the powers in being, as the usurper would certainly do for disobedience." 

But, sir, this principle is not without judicial recognition in this country. In the case 
of Respublica t's. Samuel Chapman, (1 Dallas, pages 53 to 00,) decided in 178?, before 
the recognition of our independence, the court held. Chief Justice McKean delivering the 



11 

opinion, that the State of Pennsylvania having declared its independence of Great Britain, 
and having established a Government capable of affording protection to the citizen, high 
treason might have been committed against it by any person luho was a subject of the common- 
wealth. The court say : 

'•Allegiance being due from the 2Sth of November, 1776, when, as already observed, the legislature was con- 
vened, and the members of Council were appointed, treason, which is nothing more than a criminal attempt to 
destroy the existence of the Government, might certainly have been committed before the different qualities of 
the crime were defined and its punishment declared by a positive law." 

And why ? Because treason being a crime at common law, and protection and allegiance 
being reciprocal, the power — organized political power — that protects, has the undoubted 
right to command the obedience of those whom it protects. The court, in this case, also 
observe : 

"Pennsylvania was not a nation at war with another nation, but a country in a state oi civil war, and there 
is no precedent in the books to show what might he done in that case ; except, indeed, where a prince has 
subdued the people who took arms against him hefcure tliey had formed a regular government, which is likewise 
inapplicable here." 

Why inapplicable ? Because, although less than five months had elapsed since the 
assertion of independence, yet the people of Pennsylvania had "formed a regular govern- 
ment." The right, therefore, which a prince has to the allegiance of a people in arms 
against him, and to punish them criminally, they being subdued before a regular govern- 
ment was formed by them, could not exist after the formation of such government and for 
such acts as were done in obedience thereto. The correctness of this opinion has never, 
to my knowledge, been questioned by any subsequent judicial decision. It is supported 
by reason and acknowledged in the political action of every modern civilized nation. Coke 
says, and lawyers have ever been proud to repeat it, that " law is the perfection of reason." 

Now is it reasonable, or can it possibly be law, that a citizen can be answerable, capi- 
tally, at the same time to two governments for his political conduct ? The government 
de facto having power and control over him, capable of punishing with death his disobe- 
dience, commands him to do a certain act. The government de jure has not the power to 
protect him against the consequences of disobedience to that command, but threatens to 
punish obedience thereto with death in the future. He yields obedience to the govern- 
ment (fe/acio ; fortune subsequently places him in your power. Would you, could you, 
lawfully execute him ? Reason says no ; justice says no ; humanity says no ; and ail civ- 
ilized nations have said no. I admit that you may arbitrarily declare belligerent acts of 
a government de facto to be as against you acts of treason on the part of those committing 
them, and a subservient court, adopting the views of the legislative and executive depart- 
ments of the Government, might feel constrained to pronounce in favor of the validity of 
your enactments ; but you cannot rightfully or justly change the nature of things, or influ- 
ence the judgment of the world in respect to them. All nations profess to be neutral in 
reference to our existing difficulties. They acknowledge the existence of civil war in this 
country. Acknowledging the existence of civil war, they cannot consider as criminal those 
act!? of hostility on the part of the so-called confederate States which war authorizes, and 
which they may direct against us. We have decided this question ourselves, and cannot 
complain if other nations shall act upon our decision. In case of the United States vs. 
Palmer, (3 Wheaton,) the court held that — 

" Where civil war rages in a foreign nation, one part of which separates itself from the old esta!51ished Gov- 
ernment and erects itself into a distinct government, the courts of the Union must view such newly constituted 
government as it is viewed by tlie legislative and executive departments of the Government of the United 
.States. If the Government of tlie Union remains iieutral but recognizes the existence of civil war, the courts of 
the Union cannot consider as criminal those acts of hostility which war authorizes, and which the new govern- 
ment may direct against the enemy." 

The court also held that the same testimony which would be sufficient to prove that a 
vessel or persob is in the service of an acknowledged State is admissible to prove that they 
are in the service of a newly created government, and .Judge Johnson well remarked, that — 

"To exempt from the punishment of piracy it was only necessary to prove, first, the existence of open war; 
and, secondly, that the vessel was owned and commanded as a belligerent vessel." 

Mr. President, the true theory of our government is this : the Federal Government is 
the creature of the States. They, being sovereign, made it. Within the sphere of its 
delegated powers they agreed that it should be supreme. They thereby did not relinquish 
their own sovereignty, but retained it fully and absolutely- within the sphere of their re- 
served or non-delegated authority. But that I may not be deemed heretical, I will adopt 
the language of Roger Sherman : 

"The Government of the United States being federal, and instituted by a number of sovereign St,ates,they 
may be considered as so many pillars to support it." 

I also adopt the language of the men who assisted in making the Federal Constitution, 
in their joint official report to Governor Huntington. They say : 

« Those powers (those granted to Congress) extend only to matters respectfug the common interests of the 
Union, and are specially defined, so that tlie particular .States retain their saotreignty in uU other viatlers. 



12 

Is it necessary to multiply authorities? They are innumerable. Let the defamers of 
their living countrymen hear what the fathers and the men who framed the Constitution 
said in reference to the nature and extent of Federal and State authority. Sir, if the 
men who made the Constitution were alive to-day the abolition disunionists of the North 
would call them secessionists. Their theory seems to be that the States, as such, are 
nothing in our Federal system ; that they are mere provinces ; that their citizens are sub- 
jects of one great, powerful, consolidated Government, of which Abraham Lincoln is 
absolute sovereign and William H. Seward prime minister. 

The principles of these Constitution-destroyers, however, are very flexible. They can 
resist and advise resistance to the due execution of Federal authority when attempted in 
their midst ; they can abet and countenance insurrection and treason in Virginia, arm 
slaves for the murder of their masters, and impiously proclaim that the gallows upon which 
John Brown was hanged to be as glorious as the cross upon which our Saviour died ; but 
if abolitionism is to be forced upon an unwilling people, then passive obedience is the 
highest duty ? and resistance to arbitrary power, even by one who, by command of hi.* 
State, is forced to resist or die, the Federal authority not being capable of shielding him 
from the consequences of disobedience, is treason, to be punished with death and confisca- 
tion of estate. Sir, if Caleb Strong, Christopher Gore, James Wilson, Governor Hunting- 
ton, Roger Sherman, and many of the political fathers were alive to-day, they would be 
very fortunate, indeed, if they escaped a compulsory residence in Fort Warren. Says 
Caleb Strong : 

"The State Legislatures are the guardians not only of individuals, but of the sovereignty of their respective 
States." 

Says Senator Gore : 

" The Government of the United States can exercise no powers not granted by the Constitution; and so far 
as this Government can support such as it claims, on this cfiarter it is sovereign. The government of eacli 
State IS EQUALLY SOVEREIGN With respect to every power of an independent State which it has not delegated to 
the United States, or is not prohibited to the several States by the Constitution." 

Says Judge Wilson : 

"On what pretence can it be alleged, that it was designed to annihilate the State governments? I will un- 
dertake to prove that upon their existence depends the existence of the Federal plan." 

But why multiply authorities. The principles already discussed, and authorities cited, 
convince me of the truth of the following propositions: 

The Government of the United States was made by the people of the several States, 
acting in their separate State capacity, and not by a majority of the whole people of the 
United States, acting in their collective capacity. 

That the Government thus made is one of delegated limited powers, but that within the 
scope of those powers it is supreme, and that allegiance is due to it to that extent by every 
citizen of the United States. 

That the several States are equally sovereign within the scope of their reserved or non- 
delegated powers, and that to this extent allegiance is due to them respectively by their 
citizens. 

That we are in the midst of a great political revolution in which eleven States are par- 
ties on eae side and the Federal Government party on the other — those States confede- 
rating unwisely and wrongfully, as I believe, to withdraw themselves from the Federal 
Union, and to permanently establish one among themselves. 

That the events developed by this revolution have antagonized the double allegiance of 
the citizens of the confederated States. That those States having established a government 
de facto, and the Federal authority having been so far in fact ousted from those States that 
it cannot afford protection to the citizen against the consequences of disobedience to the 
commands of State authority, and the State or confederation of States having the power 
to punish him even with death for disobedience, he is excused, in the language of Black- 
stone, in obeying, and thereby incurs neither the penaltjr of death nor confiscation of 
estate, as a consequence of the crime of treason against the United States. 

If these principles, Mr. President, be correct, and however unpopular they may be, and 
however much they may subject me to misrepresentation and abuse by the ignorant, the 
thoughtless, and the malicious, I honestly believe them to be, there is an end to the bill 
under consideration. Its only basis of support is gone. Treason is out of the question. 
It is " an act to confiscate the property of rebels for the payment of the expenses of the 
present rebellion, and for other purposes." In other words it is an act for the punishment 
of treason. 

But there is another view to be taken of this matter which presents the argument I am 
urging in a still stronger light. While I admit the right of this Government by force of 
arms to prevent the secession of any of the States of the Union, I deny that such right is 
derived from or granted by the Constitution of the United States, 1 believe the doctrine 



13 

of Oliyer Ellsworth to be true, that " this Constitution does not attempt to cotrct. sovirtign 
States in their political capacity." This right, if it exists, springs from the overruling ne- 
cessity of self-preservation and the right which one party to a contract, while fulfilling his 
own obligations under it, has to compel a compliance by the other party to it with his 
obligations. If these reasons do not justify us, then we are without excuse for all the blood 
we are now sheddiug. Let those who deny the truth of this proposition point to the article 
and section and clause in the Constitution which give the power they claim. Congress, it 
j(? true, has power '' to provide for calling forth the militia to execute the laws of the 
Union, suppress insurrection, anc^ repel invasion ;" but the action of a sovereign State is not 
an insurrection within the meaning of this provision. This is clearly inferable froni the 
direct refusal of the constitutional convention to give authority to the Federal Government 
to exercise its military power to control the action of the State governments, and also by 
the recorded opinions of its founders in reference to the extent of authority granted 
to it. 

Practically, ho^wver, it makes little difference whether this power of coercion is of con- 
stitutional origin, or whether it results from the principles before stated so far as its direct 
consequences are involved. But it makes an essential difference in reference to the ques- 
tion we are now considering. If the possession of the Island of Cuba were necessary 
to the safety and existence of this nation, we should be fully justified by the law of nations 
in seizing it at any hazard. War would be the necessary result ; but*ven this, with all its 
consequences, would be justified by the great right of self-jjreservation. As far as the 
necessity of the case should go her commerce might be destroyed, her fields laid waste, her 
cities ruined, those of her people who should meet us in arms Avould be liable to be 
slaughtered, but never could they be regarded or treated as rebels or traitors. The law of 
necessity upon which our justification was founded would impose no obligations upon them. 
AVe might coerce them into submission, but we could not. regard them as having violated 
any great moral or political duty. 'J'heir only crime would have been the want of suflfioient 
physical strength to sustain themselves against our arms. 

Whether a continuance of the war which we are now waging, will be justifiable or other- 
wise, will depend upon the purpose and object for which it shall be waged. No one will 
contend, I presume, that it is necessary to the existence or independence of the adhering 
States, or of a common Government between them. The right, therefore, to wage it is the 
same that one party to a contract, fulfilling his own obligations under it, has to a specific 
performance of it by another party. The party asking for the specific performance must 
show his own compliance wih its terms and spirit. Showing this, he establishes his right 
to a decree against a defaulting party. But the complainant cannot have a decree for per- 
formance on any other terms than those named in the original agreement. He cannot 
interpolate or take from it. It must be performed in wliole or not at all. If you wage this 
war, therefore, for the restoration of the Union as it was and the Constitution as it is, ob- 
serving your own obligations under tli.ir instrument, and infringing no constitutional right 
of others, you will, since the swoni only can decide, be justified, and^he good and the 
patriotic everywhere will invoke the blessings of Heaven upon your efl'orts, and hold up 
3'our hands when they are feeble. But if, in waging it, you mean to subvert the Constitu- 
tion, which is the only bond aud obligation of the union, if you mean to destroy or impair 
the constitutional rights of the States or the people, you wage it under a false pretence 
and your war is murder and your success treason. 

If the principles for which 1 ccmtend be correct, it follows that the contest in which we 
are involved is war, civil war. Sedition, insurrection, rebellion, in the ordinary accepta- 
tion of those terms, are out of the question. The rights and duties of the parties to the 
controversy are to be determined by the rules of modern civilized warfare. What those 
rules justify may and what they forbid may not be done. Those rules are to be learned 
from institutional writers and the modern practice of nations. The old rule of barbarism, 
that a nation at war with another was at war with each and all its subjects, has passed 
away with the ignorance and inhumanity in which it had its origin. The modern rule 
and the modern practice is, that private property is to be respected, and that public prop- 
erty alone can be acquired by war. On this principle we acted during the war with 
Mexico. Robbery of private Mexican citizens was punished, by our order, with death. 
Private rights, of person and property, were sacredly respected, and in this we but fol- 
lowed the example of all modern civilized nations. Does the fact that we are now at war 
with our own kindred change the rule or justify the visitation of punishment upon them 
which we would not and which we could not rightfully inflict upon a foreign people under 
similar circumstances? Senators, I am afraid that the existence of negro slavery in the 
southern States makes all the difference, both in theory and practice. 

Mr. President, it is no use to attempt to disguise the fact or conceal the truth in this 
case. Ostrich like, you may stick your heads in the sand and suppose you are concealed. 
You delude yourselves. Your purposes are known. ■ Your motives are understood. The 



14 

< 

present knows Uiem, the future will know Ihctn, and history will record them. Did not 
slavery exist in the southci'n States you never would have thought of a confiscation bill. 
You did not think of it in the war of 1812 with England. You did not think of it in the 
war with Mexico. Why do you think of it now? Your design is to make this a war 
for the abolition of slavery. You desire to destroy the domestic institutions of the States.' 
Abolitionism will be satisfied with nothing less than universal emancipation ; and aboli- 
tionism would not prosecute this war another day or another hour were it not for the 
hope that these objects may be accomplished. Abolitionism is speculating upon the 
patriotism of the people. It shouts Union, while meaning, if possible, to destroy the 
only bond (ff Union. Could it be personified, clotl^ed in flesh, made a living, sentient 
being, it could be indicted and convicted as a common cheat, as an insidious, dastardly 
traitor. Sir, I do not believe you could this day pass through the two Houses of Congress 
by a majority vote of the representatives of the party in power a joint resolution in favor 
of the Union as it was and the Constitution as it is. Abolitionism demands universal 
emancipation or disunion. It is as mueh a foe to the constitutional Union of the fathers 
as is secession. They are twin spi-rits of evil, allies in a common cause, and as such 
dcsei've the execration of the patriotic everywhere. 

In such motives, Mr. President, I believe this measure has its origin. It is a measure 
the principles of which are condemned by modern writers upon international law, and is 
wholly unknown in th« legislation of other nations in modern times. Even in the case of 
conquests from foreign nations, no general transmutation of title has occurred since the 
time of William the Conqueror ; nor has private property, unless under peculiar circum- 
stances, been interfered with by a coijquering Power. The bill under consideration em- 
braces not only things corporeal, but stocks, credits, and other efl^ects of an incorporeal 
nature, and, as if our stupidity and folly shall be evidenced in every possible form and to 
all future generations, the act declares that these shall be lawful subjects of seizure and of 
frizc and capture. A debt, a credit, the subject of seizure, of prize, and of capture ! Sir, 
yva have provided this session that the acts of Congress shall not in future be engrossed 
on parchment. It is well. Let those of this session be traced in sand, or written in 
water that our children may not blush at the ignorance of their fathers. There is not a 
single .modern publicist that would not pronounce the attempt to confiscate choses in. 
action as contrary to the law of nations ; and there is not, as I believe, a single institu- 
tional writer of any country who would justify confiscation at the end of a civil war. 
When Alexander, by conquest, became absolute master of Thebes, he remitted to the 
Thessalians a hundred talents, which they owed to the Thebans, and this is the origin of 
this whole doctrine of confiscation. To this orisrin Vattel traces it. The. doctrine is 
worthy of its origin. PuffendorfiF lays down the doctrine that ^^incorporalia bello no7i ad- 
quiruntur ; and also remarks : 

" Unde Bi civis ab hoste captus fuerit, bona istius, quas siDiul capta non fuerunt, iion adquirunter capienti; 
sed ad eum perveniiint, quem leges ciTiles, ad siiccessionem vocabant Bi esto naturali mortc functus csset." 

Upon which LorS Ellenborough, in the case of Wolf against Oxholm, (G Maule and 
Sclwyn, p. 92,) observes: 

" If thiuRS belonging to a captive enemy, but not actually taken, do not pass to the conquering enemy, how 
can things belonging to a person not made captive be legally acquired by an enemy vvbo is not a conqueror, 
either as to the person or the things?" 

In the case referred to, Lord Ellenborough decided that an ordinance made by the Gov- 
ernment of l5enmark, pending hostilities with Great Britain, whereby all ships, goods, 
moneys, and money's worth, of or belonging to English subjects, were declared to be 
seqtiestrated and detained, and by which all persons were commanded, within three chiys, 
to transmit am account of debts due to English subjects, in default of which they were to be 
proceeded against in the exchequer, was not comformable to the usage of nations and was, 
therefore. Void, and he gave judgment against the defendant, notwithstanding he had pre- 
viously paid the amount of the debt to commissioners appointed in virtue of the ordinance 
to receive payment. The conclusion of the opinion in that case is as follows : 

" Considering, therefore, that the right of confiscating debts contended for on the authority of these citations 
from Vattel, is not recognized by Grolius, aud is impugned by Puffendorff and others, that such confiscation was 
not general at any period of time, and that no in.stance of it except the ordinance in question, is to be fo'ind for 
something more than a century. We think our judgment would lie pregnant of mischief to future times if we 
did not declare that in our opinion this ordinance and the payment to commissioners appointed under it, do not 
furnish a defence to the present action ; and if they cannot do this of themselves, neither can they do so by the 
aid of the proceedings in tlie Danish court. The parties went into that court expecting justice according to the 
then existing laws of the country, and are not bound by the quashing of their suit in consequence of a suhse- 
(jMCJii ordinance, not conformable to the usage of nations, and which therefore they could not expect, nor are they 
or we bound to regard." 

That confiscation is contrary to the modern law of nations is further evidenced by what 
occurred in 1853, on behalf of the Lombards, who had been obliged to leave the Austrian do- 
minions in consequence of the unsuccessful attempt at revolution in Italy in 1848-49. On 



15 

that occasion the reclamations of Sardinia on belialf of those refugees, and to prevent the 
confiscation of their property, were earnestly sustained at Vienna, both by England and 
France. On no other principle could those Powers have interfered than that such confisca- 
tion was contrary to the law of nations. (See page 168, of the introduction to the last 
edition of Wheaton.) . • j / 

Again, sir. the same principle has been decided in this country in an opinion by Judge ' 
Sprague. He settles the principle that confiscation of property, hot for any use made of 
it in war, which go not against an offending article of property, but are inflicted for the 
personal delinquency or crime of the party, are punitive, and that all punishments should 
be inflicted only on conviction by due process of law for personal guilt. There is the great 
advantage of the bill proposed by the Senator from New Hampshire [Mr. Clark] over 
the bill of the House of Representatives, it conforming, to some extent at least, with the 
provisions of the Constitution in reference to trial by jury ; but for neither of these bills 
shall I vote. 

It may be said that the principle for which I contend applies oply to hostilities between 
foreign nations. But Vattel declares that^" the common laws of war are in civil wars to 
be observed on both sides. The same reasons which make the obligations between foreign 
"States renders them necessary in the unhappy circumstances where two exasperated par- 
tics are destroying their common country ;" and the action of France and England referred 
to evidences the correctness of the declaration. Let us avoid a like interference by foreign 
Towers in behalf of humanity by abstaining from those nets which the laws of nations 
condemns. I am aware of the attempts to disregard the facts which determine the char- 
acter of the present contest. That our Government, wljile taking advantage of belligerent 
rights in instituting blockades, and in doing similar acts, has professed to regard the exist- 
ing state of things as an insurrection merely, and not a civil war. The distinction in this 
case is nowhere more ably stated than in the chnpter of Vattel to which I have referred, 
and I believe no foreign publicist will be disposed to deny what Lord Lyons was instructed,, 
in January, to say to Mr. Seward, that " an insurrection extending over nine States in 
space and ten months in duration can only be considered as a civil war." 

But, sir, we ourselves, have determined the character of our present struggle Day 
after day it has been declared on this floor and in the other House of Congress that wc 
are engaged in war. On the 22d of July last, in the resolutions adopted by Congress, and 
before referred to, it was declared that when the supremacy of the Constitution was vin- 
dicated and the Union preserved, the war ought to cease. We have adopted all the usages 
and ceremonies of war. What mean your flags of truce, your commissions to negotiate 
for the exchange and your actual exchange of prisoners ? Were these things ever done • 
in an insurrection or a rebellion ? Sir, you have acknowledged the existence of w.ar; and war 
has its laws, its rights, its duties, which nations cannot disregard, but are bound to respect. 

Mr. President, I will detain the Senate no longer with the discussion of this measure. 
As means of punishing treason, its provisions ;ive so flagrantly unconstitutional that few 
will venture to claim for it constitutional authority. Due process of law, trial by jury, and 
judgments of courts of common-law jurisdiction are wholly ignoi-ed by it. Proceedings in 
rem are to be the efficient means for the forfeiture of estates and condemnation for treason 
against the Government. As a war measure, it contravenes the well established principles 
and violates the practice of all modern civilized nations. As a measure of policy, it is 
repudiated by reason and condemned by humanity. Its adoption can only prolong the 
war and render separation final and forever. No happier rebuke has been given to the 
attempt to barbarize our insane civil war than the remarks of Lord Russell in reference to 
the stone blockade, as repeated by Lord Lyons to Mr. Seward : 

" The object of war is peace, and the purposes of peace are mutual good will and advantageous commercial 
intercourse; but this proceeding would deprive war of its legitimate objects by stripping peace of its natural 
fruits." 

In the remarks I have submitted I have had but one object in view : the discharge of a 
solemn duty to my bleeding and distracted country. Could passion cease to govern and 
reason be allowed to control our action, we might, in the providence of God, even yet 
rescue our institutions from destruction and perpetuate them to remotest generations. 
Whatever shall be the result of this contest, as long as there shall remain a hope for the 
lireservation of constitutional liberty, I shall remain true to my arllegiance to that Govern- 
ment to which I owe all that I am and all that I hope to be, even until I shall be gathered 
to my fathers in the midst of that people among whom both they and I were born. Their" 
people shall be mv people,' their God my God, and where thoy are buried there also will I 
finally repose. My fervent prayer is that peace, harmonj', fraternal union may be. again 
restored, and one flag proudly float from ocean to ocean and from lakes to gulf; that 
the Federal Government, based upon an unchanged Constitution, may again dispense its 
blessings to a united, happy, prosperous, and free peoj)le. 



XI 



